Macias v. Texas Property & Casualty Insurance Guaranty Ass'n , 1998 Tex. App. LEXIS 3642 ( 1998 )

DUNCAN, Justice,

dissenting.

I dissent. As the majority opinion states, Macias alleges he was injured while participating in a work-hardening program. However, the summary judgment record conclusively establishes this program was agreed to and prescribed by Dr. John A. Evans, Macias’ treating physician, not Macias’ employer; therefore, section 1 of article 8309, Tex.Rev. Civ. Stat. Ann., does not apply. Likewise conclusively established is that Dr. Evans prescribed the work-hardening program as treatment for Macias’ March 3, 1990 back injury. Accordingly, the aggravation of Macias’ back condition while participating in the work-hardening program is covered by the Compromise Settlement Agreement and is not a separately compensable injury. Cigna Ins. Co. v. Rubalcada, 960 S.W.2d 408, 412 (Tex.App.—Houston [1st Dist.] 1998, n.w.h.) (quoting United Employers Casualty Co. v. Marr, 144 S.W.2d 973, 976 (Tex.Civ.App.—Galveston 1940, writ dism’d judgm’t cor.)). The majority therefore errs not only in its interpretation of article 8309 but in reversing the summary judgment.